DocketNumber: No. 4651
Citation Numbers: 37 Colo. 21
Judges: Steele
Filed Date: 4/15/1906
Status: Precedential
Modified Date: 7/20/2022
delivered the opinion of the court:
Smith and his associates located the Union lode in Upper San Miguel mining district, on the 1st of January, 1902, and brought adverse suit, in the district court of San Miguel county against Oberto, who had located a lode formerly known as the Jupiter, as the Hattie lode, in said district some time prior to the location of the Union. The record discloses that the Hattie lode was located on the 16th of September, 1901. The land embraced in the two locations is the same. In' the case of Conn v. Oberto, reported in 32 Colo. 313, it was held that the action of Hogg and Oberto, the owners of three-fourths of the Jupiter, in granting permission to Piter Oberto to enter into the possession of the Jupiter and locate the Hattie thereon was an abandonment on their part of the Jupiter claim, but that such action did not deprive Shane, the owner of the remaining portion, of his interest in the Jupiter. Shane, however, is not before
The locators of the Union say that as there was abandonment by but three-fourths of the owners of the Jupiter at the time of the Hattie location, the initiation of the Hattie was by trespass, and that the subsequent abandonment by the owner of the remaining portion of the Jupiter, after the location of the Hattie, did not have the effect of validating the Hattie location; that the annual labor was not performed on the Jupiter for the year 1901, and therefore that' at the time of the location of the Union the land embraced within the Hattie and the Jupiter was open to appropriation. The court sustained the position taken by the locators of the Union, and rendered judgment in their favor.
The testimony in this case is somewhat different from that in the case cited. In this case a document executed by J. W. Shane appears in the .record, as follows: “August 31, 1901. I hereby ratify the abandonment of the Jupiter lode near Pennsylvania tunnel. J. W. Shane. ’ ’ This document was executed some time during the month of November, 1901, and was dated as of August 31st. It was dated August 31st, as explained by the witness Hogg, “in order to have the date correspond with the statement of.Mr. Oberto and myself that we did not care longer to hold the property.” Mr. Hogg also testified that the owners had an agreement to the effect that each owner agreed to be bound by the acts of the others with reference to the property. He said, in response
It appears from the testimony that about the time .of the conversation with Hogg and Oberto, Piter Oberto went into possession of the property, and located it on September 16, 1901, and that sub-. sequently he performed labor upon the Hattie. He said, when asked what work he had done on the Hattie after September, 1901-. 1‘ About fifty-one and a half feet from the outside to the inside to the breast of the tunnel. ’ ’
We are of opinion that the locator of the Hattie was not a trespasser; that having obtained permission from the owners of three-fourths interest in the Jupiter to enter into possession of the property, they stating to him that they did not care to have anything more to do with the claim, the owners authorized him to take possession thereof and abandoned their interests; and that when subsequently Mr. Shane, the owner of the other interest, consented to abandon the property, that it was equiva
Tbe judgment is reversed. Reversed.
Chief Justice G-abbert and Mr. Justice Campbell concur.